Unsuccessful recess appointments to United States federal courts

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In the history of the United States, there have been approximately thirty-two unsuccessful recess appointments to United States federal courts.[1] Twenty two persons have been appointed to a United States federal court through a recess appointment, who were thereafter rejected by the United States Senate when their name was formally submitted in nomination, either by a vote rejecting the nominee, or by the failure of the Senate to act on the nomination. These individuals served as federal judges, having full authority to hold office and issue rulings, until their rejection by the Senate. Five individuals were appointed, but resigned the office either before the Senate voted on their nomination, or before a formal nomination was even submitted. Another five individuals were appointed, but were found to be unavailable to assume the office.

Constitutional background[edit]

Article II, Section 2, Clause 3 of the United States Constitution states:

This language permits the President to make appointments that would normally require the advice and consent of the Senate without such approval. Even if the Senate votes to reject the nominee, that person may remain in the office to which they were appointed until the Senate adjourns its session.

History of use[edit]

John Rutledge, appointed by George Washington was the first recess appointment to be rejected by the Senate, and the only recess appointee to the Supreme Court of the United States to be rejected. Washington appointed Rutledge on July 1, 1795, but because of Rutledge's political views and occasional mental illness, the Senate rejected his nomination December 15, 1795. Rutledge subsequently attempted suicide, and then resigned on December 28, 1795. The 4th United States Congress remained in session until June 1, 1796, so Rutledge could have remained on the Court until then, but chose not to.

Wallace McCamant, appointed by Calvin Coolidge on May 25, 1925, was the lone recess appointment to a United States Court of Appeals to be rejected by the Senate. The Senate never voted on his nomination, and it expired on May 2, 1926.

In total, fourteen presidents have had recess appointments rejected. William Howard Taft - who only made six recess appointments to the federal bench - experienced the largest number of rejected recess appointments, with three. Harry S. Truman - who made a record 38 such appointments - also had three recess appointments rejected, but one of those was later reappointed and confirmed. Taft had also used recess appointments to reappoint two judges whose recess appointments by Theodore Roosevelt had been rejected; both appointees resigned from their positions before their names were formally submitted into nomination.

Unsuccessful recess appointments by type[edit]

Rejected recess appointments[edit]

Rejected recess appointees to the United States district courts are as follows:

Judge Court Appointing
President
Began active
service
Ended active
service
Notes
Cheney, John MosesJohn Moses Cheney S.D. Fla. Taft 19120826August 26, 1912 19130303March 3, 1913 Congress adjourned without acting on the nomination.
Creighton, Jr., WilliamWilliam Creighton, Jr. D. Ohio J.Q. Adams 18281101November 1, 1828 18290216February 16, 1829 Congress adjourned without acting on the nomination.
Ewart, Hamilton G.Hamilton G. Ewart W.D.N.C. McKinley 18980716July 16, 1898
April 14, 1899
19000607March 4, 1899
June 7, 1900
Received consecutive recess appointments to the same court; on both occasions, Congress adjourned without acting on the nomination.
Feikens, JohnJohn Feikens E.D. Mich. Eisenhower 19601013October 13, 1960 19610927September 27, 1961 Congress adjourned without acting on the nomination. Renominated to the same court by John F. Kennedy, but the nomination was withdrawn; again renominated by Richard Nixon, on October 7, 1970, and confirmed by the United States Senate on November 25, 1970, receiving his commission on December 1, 1970; took senior status on March 1, 1986.
Friedman, Monroe MarkMonroe Mark Friedman N.D. Cal. Truman 19530717July 17, 1952 19530724July 24, 1953 Nomination withdrawn prior to Senate action.
Harper, Roy WinfieldRoy Winfield Harper W.D. Mo. Truman 19470807August 7, 1947
December 20, 1947
19480622December 19, 1947
June 22, 1948
Received three consecutive recess appointments to the same court; on the first two occasions, Congress adjourned without acting on the nomination, but confirmed the third recess appointment; thereafter served as an active judge until January 5, 1971, and in senior status until his death on February 13, 1994.
Heen, Walter MeheulaWalter Meheula Heen D. Haw. Carter 19810101January 1, 1981 19811216December 16, 1981 Nomination withdrawn (by President Reagan) prior to Senate action.
Henley, Jesse SmithJesse Smith Henley E.D. Ark. Eisenhower 19581025October 25, 1958 19590911September 11, 1959 On August 18, 1959, before the recess appointment expired, Eisenhower re-nominated Henley to a different seat on the Eastern and Western District of Arkansas; confirmed by the Senate on September 2, 1959, and received his commission on September 8, 1959 - three days before the expiration of his recess appointment; thereafter served on the District Court until March 24, 1975, and was then elevated to the Eighth Circuit.
Howard, Clinton WoodburyClinton Woodbury Howard W.D. Wash. Taft 19120826August 26, 1912 19130303March 3, 1913 Congress adjourned without acting on the nomination.
Hundley, Oscar RichardOscar Richard Hundley D. Ala. T. Roosevelt 19070409April 9, 1907
May 30, 1908
19090303May 30, 1908
March 3, 1909
Received three consecutive recess appointments to the same court, two from Roosevelt and the third from William Howard Taft; on the first two occasions, Congress adjourned without acting on the nomination; resigned after the third recess appointment, with his name not having formally been put into nomination.
Johnson, George E. Q.George E. Q. Johnson N.D. Ill. Hoover 19320803August 3, 1932 19330303March 3, 1933 Formally rejected by the Senate.
McHugh, William DouglasWilliam Douglas McHugh D. Neb. Cleveland 18961120November 20, 1896 18970201February 1, 1897 Nomination withdrawn prior to Senate action.
Purdy, Milton D.Milton D. Purdy D. Minn. T. Roosevelt 19080706July 6, 1908 19090303March 3, 1909 Congress adjourned without acting on the nomination; received a second recess appointment to the same seat from President William Howard Taft on March 6, 1909, but resigned on May 1, 1909, with his name not having formally been put into nomination.
Rabinovitz, DavidDavid Rabinovitz W.D. Wis. L.B. Johnson 19640107January 7, 1964 19641003October 3, 1964 Congress adjourned without acting on the nomination.
Roberts, Floyd H.Floyd H. Roberts W.D. Va. F. Roosevelt 19380706July 6, 1938 19390206February 6, 1939 Formally rejected by the Senate.
Sloan, Richard ElihuRichard Elihu Sloan D. Ariz. Taft 19121203December 3, 1912 19130303March 3, 1913 Congress adjourned without acting on the nomination.
Switzer, Carroll O.Carroll O. Switzer S.D. Iowa Truman 19491021October 21, 1949 19500809August 9, 1950 Formally rejected by the Senate.
Tappan, BenjaminBenjamin Tappan D. Ohio Jackson 18331012October 12, 1833 18340529May 29, 1834 Formally rejected by the Senate.
Tilson, William JosiahWilliam Josiah Tilson M.D. Ga. Coolidge 19260606June 6, 1926 19270304March 4, 1927 Received a second recess appointment to a different seat on the same court on March 5, 1927, but resigned on March 19, 1928, with his name not having formally been put into nomination.
Winch, Joel C. C.Joel C. C. Winch E.D. Tex. Grant 18701011October 11, 1870 18710303March 3, 1871 Congress adjourned without acting on the nomination.

Recess appointments who resigned[edit]

Judge Court Appointing
President
Began active
service
Ended active
service
Notes
Pendleton, Philip C.Philip C. Pendleton W.D. Va. J.Q. Adams 18250506May 6, 1825 18250729July 29, 1825 Resigned before he was formally nominated to the office, and was therefore never considered by the United States Senate.
Pickering, Charles W.Charles W. Pickering Fifth Circuit G.W. Bush 20040116January 16, 2004 20041208December 8, 2004 Formally nominated on January 7, 2003, but resigned prior to action by Congress on the nomination.

Notes[edit]

  1. ^ All information on the names, terms of service, and details of appointment of federal judges is derived from the Biographical Directory of Federal Judges, a public-domain publication of the Federal Judicial Center.

References[edit]